Workers

June 07, 2018

When you look up the definition of “uber” online, here’s what it says: “denoting an outstanding or supreme example of a particular kind of person or thing.” I think I’ve figured out exactly what kind of uber thing Uber is: an outstanding or supreme example of a “tort reform” hypocrite.

Clearly, this is a company that understands the importance of litigation, and makes unfettered use of the civil courts in order to protect its own profits. For example, just last September, the company filed a lawsuit seeking at least $40 million for harms Uber says it suffered after a mobile ad agency “misrepresented the effectiveness of its mobile ads,” among other things. A company representative toldLaw360, “While we believe litigation should always be a last resort, we hope this action will help bring more attention to the problem of online ad fraud.” Uber also clearly knows the importance accessing the courts when there’s a data breach. Right now, the company is pursuing a lawsuit to uncover the identity of someone who allegedly “stole information from a database containing names and driver’s license numbers for 50,000 current and former drivers.”

But when it comes to harm that the company directly causes its own customers and employees, Uber is single-mindedly fixated on blocking court access. It does so through the use of forced arbitration clauses and class action waivers. As we speak, Uber is demanding that a federal court “dissolve a class of hundreds of thousands of current and former Uber drivers who allege they were misclassified as independent contractors and denied fair wages.… in light of the high court’s May 21 ruling in Epic Systems.” (See our post on Chrysler last week.) WritesLaw360,

The Supreme Court ruling wiped out precedent in a handful of circuits, including the Ninth, stating that workers can’t give up their power to file class actions in court under the National Labor Relations Act, which guarantees workers’ rights to engage in certain group activity. The Northern District of California had in its certification order declared unenforceable some drivers’ agreements to arbitrate work disputes.

“Epic Systems ends any possible argument that the arbitration agreements should not be enforced,” Uber said. “And because the majority of class members signed these arbitration agreements, Uber respectfully submits that this court must reverse the district court’s class certification order and its order declining to enforce the arbitration agreements.”

Forced arbitration clauses and class action waivers are not just part of driver contracts, but are also part of the Uber app that we all use, buried in “terms of use” agreements that online companies use and that no one reads, let alone “negotiates.” As a result, the company was able to compel arbitration in a price-fixing case involving Uber fares, with a court throwing out a customer’s class action after finding that the arbitration clause “was right there, lurking within a ‘terms and conditions’ page hyperlinked on his smartphone. Once he clicked the ‘I agree’ button to set up his account, he was ‘sunk.’”

Yes, Uber can be commended for agreeing to no longer force cases involving sexual assault into arbitration, bowing to pressure from sexual assault victims. But the fact remains that the company still insists on using class action waivers to prevent victims from joining with others in court and continues using forced arbitration clauses and class action bans in every other kind of dispute, whether the case involves employees, drivers or users of the Uber app.

But here’s some good news.

This week, a Brooklyn New York judge stood up to Uber, “allowing a disabled woman to move forward with a lawsuit” saying “Uber can’t force its customers to accept private arbitration instead of taking their legal claims to court.” Uber tried to stop a discrimination class action from going forward, saying a customer agreed to arbitration. But this time, a judge – using basic common sense - said no. Writes the New York Post,

The company’s arbitration clause is buried so deep in reams of legal language that it is unfair to expect users of the app to dig that deeply through the fine print, wrote Kings County Judge Francois Rivera in a decision released Wednesday.

“A registrant may complete the process without seeing or even being aware that there are other clickable buttons leading to a screenshot containing Uber’s terms and conditions,” he wrote.

“Uber has been pushing cases to arbitration all across the country so they don’t have to go to court and create a precedent,” said [her attorney, Ian] Poulos. “This case isn’t binding outside of New York, but it is very persuasive and other courts could follow this standard. This is a big deal.”

I guess we’ll see how long it lasts. In the meantime, we’ve been hinting over the last couple weeks about who may have made CJ&D’s Top 30 “Tort Reform” Hypocrites of 2018. Guess who made the list? Find out Monday!

Just one day before the release of that report, the U.S. House Judiciary Committee took the opportunity to try to improve this terribly unsafe industry by preventing states like New York State from establishing strict liability standards for construction accidents. I’m kidding, of course. Not about what the committee did yesterday. About using the word “improve.” Worsen. Kill more workers. Any of those words will do.

Oddly-named “the Infrastructure Expansion Act of 2017,” H.R. 3808 would invalidate New York’s long-standing determination that those controlling safety at a construction site – i.e., owners and contractors - should be exclusively responsible for ensuring safety and limiting potential hazards involving scaffolding, ladders and elevators and other elevated hazards. As over 30 labor and consumer groups wrote in a letter of opposition to the committee:

Construction is one of the most dangerous jobs in the nation. … H.R. 3808 directly tramples on a state’s right to decide what’s best for its workers and residents regarding the responsibility of local contractors and building owners to ensure safe construction sites. It would overturn traditional state common law and interfere with a state’s right to establish tort remedies, one of the most basic and traditional of state functions.

The Committee voted 16 to 14 to approve abomination. The full House is expected to vote soon.

Speaking of workers, the Center for Justice & Democracy just released a new FAQ called, Asbestos – The Awful Truth. In it, all your questions (we hope) are answered, such as:

Some have called the actions of the asbestos and insurance industries “perhaps the greatest corporate mass murder in history.” What exactly did they do?

While the asbestos industry’s role is well known, the insurance industry’s role is not. What did insurance companies do precisely?

While these industries may have engaged in horrendous conduct years ago, isn’t asbestos an old problem?

(Short answer: “no.”) And,

Many states are now considering “Asbestos Claims Transparency” bills, which are written and shopped around the country by national industry lobbyists. Despite their name, what are these bills really about?

July 06, 2016

When I think about the 1920s, I think Charlie Chaplin, The Great Gatsby, Prohibition, silent movies, or this picture. It was a very different time. So I wonder why outdated and obsolete laws and standards originating in that time-period are still allowed to control our lives?

Take the Death on the High Seas Act, a 1920s law that protects the shipping industry (and oil companies with offshore rigs) from liability for deaths on the high seas. It severely limits compensation to families of anyone killed. We last wrote about it when Transocean – which employed 9 of the 11 workers killed in the 2010 Deepwater Horizon explosion – was asserting this law to get out of paying virtually any compensation to the families of those workers.

Sadly, this law is relevant again. Last week, an 8-year-old boy fell into a pool on Royal Caribbean International’s Anthem of the Seas cruise ship, and reports indicate that he is now on life support. Writes the Miami Herald, “The incident is another in a string of drownings and near drownings the major cruise lines have faced in recent years.… Most cruise ships, like hotels, don’t have lifeguards on duty.” (See more in Jeff Rossen’s Today Showreport, “Why do some cruise ships lack lifeguards to watch children?”)

As explained in the Center for Justice & Democracy’s FAQ, “You Cruise, You Might Lose,”

The Death on the High Seas Act (DOHSA) is a law nearly a century old that is particularly cruel. Under DOHSA, once a ship is beyond three nautical miles from shore, if someone dies due to the ship’s negligence, families are prohibited from recovering anything but “pecuniary loss” – mainly lost income or wages.… Perhaps the virtual lack of liability for the death of children is one reason why cruise lines lack the financial incentive to ensure the safety of swimming pools for children.

Ironically, if the child does not die and instead suffers severe brain damage, DOHSA will not kick in and the family will be able to sue and recover compensation – or, at least they will be governed by regular law. This is indeed what happened in 2013 after “a 4-year-old nearly drowned in a pool aboard the Disney Fantasy and suffered a brain injury. The incident resulted in a multi-million dollar settlement and lifeguards on all Disney ships.” Since this case, “Disney Cruise Line is the only major cruise company that employs lifeguards around pools.” Take note, families with small children.

Another 1920s law still making our lives miserable today is the Federal Arbitration Act – at least as interpreted by the current Supreme Court. Wrote Amalia D. Kessler, professor of law and legal history at Stanford University, “While the [1925 Federal Arbitration Act] was initially envisioned as applying primarily to disputes between commercial equals, since the 1980s, the United States Supreme Court has interpreted it in ways that have facilitated corporate America’s efforts to force consumers and employees into arbitration. This trend has accelerated in the last few years."

And as we noted in 2013 (extensively quoting a blog post by Paul Bland called “Worst Supreme Court arbitration decision ever”),

So, today, in American Express v. Italian Colors, the U.S. Supreme Court said that a take-it-or-leave-it arbitration clause could be used to prevent small businesses from actually pursuing their claims for abuse of monopoly power under the antitrust laws. Essentially, the Court said today that their favorite statute in the entire code is the Federal Arbitration Act, and it can be used to wipe away nearly any other statute.…

The decision is catastrophic for the antitrust laws, as well as for civil rights, consumer rights, and many other statutory rights. The decision is an unmitigated disaster, replacing adhesive contracts for an idea of actual law. The drafters of the FAA would not recognize what it has turned into.

Workers comp is another area of law that 1920s politicians enacted to try to make the world better but has become unrecognizable today. As ProPublicawrote,

In return for a measure of a security, workers gave up their right to sue their employers — even in cases of gross negligence — protecting businesses from lawsuit judgments that could bankrupt them. By 1920, nearly every state had enacted workers’ comp laws.

However, they report,

Over the past decade, state after state has been dismantling America’s workers’ comp system with disastrous consequences for many of the hundreds of thousands of people who suffer serious injuries at work each year, a ProPublica and NPR investigation has found.

The cutbacks have been so drastic in some places that they virtually guarantee injured workers will plummet into poverty. Workers often battle insurance companies for years to get the surgeries, prescriptions and basic help their doctors recommend.

Sounds like fodder for a new F. Scott Fitzgerald novel. Too bad he died 76 years ago.

May 17, 2016

The age discrimination lawsuits filed by Maryanne White and Rick Compton were both kicked out North Carolina state court recently - but not because they lost their cases. They were kicked out because of North Carolina’s infamous transgender bathroom law.

Say what?

“I had no idea that there were two additional addendum attached to this bill,” Maryanne White said. And we didn’t either. It turns out, the law, aka HB 2, contains some “extra” sections, which have been almost completely ignored in the national conversation about this law. Writes Pro Publica/Mother Jones, among those provisions “tucked inside is language that strips North Carolina workers of the ability to sue under a state anti-discrimination law, a right that has been upheld in court since 1985.” In other words, North Carolina still prohibits race, sex, religion, age, national origin, and disability employment discrimination. But HB 2 removes any way for victims to enforce this law in state court. From now on, discrimination victims in North Carolina must sue only under federal civil rights laws, and only in federal court. This is no small problem.

Advocates explain that the federal system is more difficult to access, rules are more complicated, and businesses often have “significant advantages.” Compared to filing in a North Carolina court, for example, bringing a federal civil rights claim is nearly twice as expensive, victims are subject to an arbitrary cap on damages, filing procedures are more complicated, time frames are more restrictive, and there are only a handful of federal courthouses across the state. Ultimately, experts claim, these factors will discourage most victims from filing any employment discrimination cases at all. As “Erika Wilson, a law professor at the University of North Carolina who co-directs a legal clinic for low-income plaintiffs with job and housing discrimination claims” put it, “The LGBT issues were a Trojan horse.… [P]eople were so caught up in [the LGBT] part of the law that this snuck under the radar.”

Conservative-leaning groups have been trying for decades to reduce the number of civil lawsuits in the states. In HB2, lawmakers accomplished this by adding a single sentence to the state’s employment discrimination law that says: “[No] person may bring any civil action based upon the public policy expressed herein.”

Democracy North Carolina executive director, Bob Hall, explains that he too sees this legislation as a continuation of an agenda by the North Carolina Chamber of Commerce and conservative North Carolina lawmakers.

State chambers of commerce in Georgia, Indiana, Mississippi and South Carolina have all come out against similar anti-LGBT legislation, but unlike proposals in other states, House Bill 2 includes provisions that make it much harder for workers to sue for job discrimination and that bans local governments from requiring contractors to pay a certain wage. Both are key priorities for the N.C. Chamber, Hall said.

"These are the kind of things they like. They want to get rid of liability," Hall said.…

After being conspicuously silent on the matter for over a month, declining to comment when asked if they played a part in drafting the new bill, the North Carolina Chamber of Commerce issued a statement calling for reopening the path to sue for employment discrimination in state court. But instead of calling for a return to the previous law, “the Chamber proposal create[s] a new bureaucratic maze for workers unlawfully terminated.” In fact, they model their suggestions on the already inadequate federal protections.

The proposal would essentially graft complications of federal litigation onto state claims and create a new and expensive bureaucracy within the N.C. Department of Labor. The Chamber seeks to create new barriers for employees terminated unlawfully and new protections for employers violating the law.

And what if the U.S. Justice Department wins its case and gets a court to strike down the law? As to the “right to sue” section, a big nothing happens. As Laura Coates put it for CNN, “[U]ltimately, the reality is that the bill itself is likely a Trojan horse. Focusing on a visceral emotional response to the social policies … will allow the remaining provisions … to infiltrate unnoticed.”

April 28, 2016

Bet you didn’t know it was a holiday today. According to the United Nations, this “annual international campaign to promote safe, healthy and decent work … is held on 28 April and has been observed by the International Labour Organization (ILO) since 2003.”

For example, over in Islamabad today, they’re celebrating “the prevention of occupational accidents and diseases globally.”

Here in the U.S., we’d better get moving on that. The AFL-CIO’s new Death on the Job: The Toll of Neglectstudy, which came out yesterday, found once again that “an average of 150 workers are killed each day” in the United States. Or more specifically, ”4,821 employees were killed while working in 2014, while another 50,000 died from occupational diseases contracted over the years."

Let’s “drill down” (no pun intended) into some of these figures.

“There were 144 deaths in oil and gas in 2014 – the highest number of fatalities ever.

The fatality rate for oil and gas extraction was 15.6 per 100,000 workers, nearly 5 times the national ”

And some other fun facts:

“In 2014, Latino workers continued to be at increased risk of dying on the job, with a job fatality rate that is 9% greater than the overall job fatality rate of 3.4 per 100,000 workers.

The construction industry was responsible for the greatest number of Latino worker deaths (233).… Latino immigrant worker deaths in the construction industry have increased 32% since 2010.”

And if you think that’s the worst of it, consider this: “While government statistics show that occupational injury and illness are declining, numerous studies have shown that government counts of occupational injury and illness are underestimated by as much as 69%.”

If money’s your thing, consider this too: “The cost of occupational injuries and deaths in the United States is staggering, estimated at $250 billion to $370 billion a year, according to two recent studies.”

A 2015 report by the Occupational Safety and Health Administration—“Adding Inequality to Injury: The Costs of Failing to Protect Workers on the Job”—outlined how work-related injuries have devastating impacts on workers and their families. According to the report, workers who are injured on the job suffer great economic loss. Even after receiving workers’ compensation benefits, injured workers’ incomes are, on average, nearly $31,000 lower over 10 years than if they had not suffered an injury. [footnotes omitted]

One of the major contributors to the severe loss of income is the gross deficiencies and inequities in the workers’ compensation system, which continues to be governed by 50 different state laws. A 2015 multipart series by Pro Publica and National Public Radio (NPR) exposed the failure of the workers’ compensation system to provide fair and timely compensation for workers hurt on the job. The series—“Insult to Injury: America’s Vanishing Worker Protections”—was based on a yearlong investigation which found that over the last decade there has been a systematic effort by insurers and employers to weaken workers’ compensation benefits for injured workers. Since 2003, legislators in 33 states have passed legislation reducing benefits or limiting eligibility. … According to Pro Publica, all of these factors have contributed to the demolition of the workers’ compensation system and left injured workers and their families and society at large bearing the costs of their injuries. [footnotes omitted]

Definitely something to think about as you celebrate World Day for Safety and Health at Work Day.

March 01, 2016

“The slings and arrows of outrageous fortune.” So said Hamlet about his dire life circumstances at the time. No doubt, the nation’s messed up politics are probably leaving some of you in a similarly depressed funk these days. So let us help! Here’s some good news to consider.

In the workers comp arena, ProPublica and NPR are reporting on a frankly extraordinary development in Oklahoma. The “business-friendly” Oklahoma Workers’ Compensation Commission unanimously ruled that the state’s 2013 law to allow corporations to “’opt out’ of state workers’ compensation — and write their own plans for dealing with injured workers — was… unconstitutional”! It compared alleged “[c]ompany plans … to provide equal benefits to workers’ comp., ‘a water mirage on the highway that disappears upon closer inspection.’” Wow! In addition, the media outlets write,

[T] he U.S. Department of Labor said in a letter obtained Monday that it is evaluating whether opt-out plans in Texas and Oklahoma violate workers’ rights under federal law.

[I]n recent years, well-known corporations, led by Walmart and Lowe’s, have been pushing states to let them handle injuries themselves, arguing they can provide better care, higher wage benefits and a more efficient system if freed from the bureaucracy of state workers’ comp. In 2013, Oklahoma became the first state to pass a law allowing employers to opt out, joining Texas, which has never required businesses to have workers’ comp.…

Last year, the corporations’ offensive appeared to be gaining steam. Tennessee and South Carolina were seriously considering bills. A national campaign drew support from Nordstrom, Whole Foods, Macy’s, Sysco and Safeway, among others. And supporters said they planned to get laws passed in as many as a dozen states within the next decade.

But months after the ProPublica and NPR story, which was republished in several news outlets, the movement appears stalled. …

Bob Burke, a workers’ comp attorney who has filed 17 cases challenging the law, said the decision will “put a cold, wet rag” on the opt-out movement.

Here’s some of what commission said about these plans:

They “give employers significant power to deny claims by letting them define what constitutes a workplace injury. For example, workers sickened by asbestos can generally receive workers’ comp. But most opt-out plans in Oklahoma specifically exclude asbestos exposure from coverage.…

Rather than creating a more efficient process for handling disputes, the system developed by the plans adds several layers that may actually make the process longer.…

Businesses are now challenging the commission authority to strike down this law. And they are appealing to the Oklahoma Supreme Court. So it's not all good news yet.

Speaking of courts, on the SCOTUS front (and perhaps a sign of things to come):

The Supreme Court on Monday rejected Wal-Mart's bid to overturn a federal appeals court decision allowing female workers to sue the retail giant for paying women less and giving them fewer promotions than men.

The court's decision not to take the case leaves intact a 6th U.S. Circuit Court of Appeals ruling that found former members of the landmark Dukes v. Wal-Mart class action did not miss the deadline to bring their gender discrimination claims on a regional basis after the Supreme Court rejected the nationwide class in 2011.

Finally in Indiana, some state lawmakers are trying to do a very small thing for patients by raising Indiana’s cap on compensation for victims of medical malpractice damages. But barely. As we’ve noted before, Indiana has a draconian compensation cap on all damages, including economic costs, lost wages, medical expenses, etc. It is, clearly, among the “lowest in the nation.” So now,

[L]awmakers are considering a $400,000 increase to the cap to set a new limit for those claims at $1.65 million beginning in 2017. The cap also would increase over time to $2.25 million by 2031 in an attempt to keep up with inflation – an aspect of the proposal strongly opposed by doctors and some medical lobbyists.

Wow, the cruelty of Indiana doctors apparently knows no bounds.

Dan Ladendorf, a representative of the Indiana Trial Lawyers Association, said the group doesn’t believe in capping damages and questioned the proposed $1.65 million limit. If Indiana’s cap was based on a medical cost index, it would exceed $2.2 million, he said.

“Even with these proposed changes, the opponents to this bill have told you Indiana would still be the most favorable state in the nation for medical malpractice,” he argued. “If you are going to commit medical malpractice, come to Indiana, because we’re the most favorable state in the nation.”

February 11, 2016

There’s an interesting IMDB list called “The 100 Best Evil Characters.” It includes some obvious choices: Darth Vader, Lord Voldemort, Chucky. I’m not sure what it takes to qualify for this list but I’m wondering whether the list creators might consider a new addition. It’s more of a group, actually. Let’s just call them: corporate hospitals.

We wrote a few years ago about what they did to brain-injured newborns in New York. Now, it’s Maryand's turn, apparently.

In Maryland, hospitals are pushing – and I mean pushing very hard (complete with a media campaign and push polls) a bill that targets the most vulnerable victims of medical malpractice – catastrophically-injured newborns. Their legislation – which is the subject of Maryland legislative hearings later this week – would abolish access to the jury system for these babies and their families, no matter the extent of the hospital’s misconduct or the severity of the child’s injury. To be compensated, parents would be forced to go to a state fund, controlled by the state’s powerful medical establishment.

Needless to say, this proposal denies these families the same kind of rights and recourse that every other negligence victim has in the state. If an adult man were injured by medical malpractice in Maryland, he would be able to sue his doctor or hospital, receive compensation determined by a neutral judge or jury after hearing all the evidence, and obtain some measure of justice by holding the wrongdoer accountable in court. Under this proposal, only brain-injured newborns and their families would be stripped of their constitutional rights. And because unsafe hospitals would no longer fully pay for their own malpractice in these cases, accountability for negligence would be weakened. Studies show that when a state strips away a patient’s right to sue in court, medical errors increase as the deterrence function of the tort system is weakened leading to the practice of riskier medicine.

Sadly, proponents of this bill are regurgitating the same unfounded threats about “lack of access to care for women” that we saw years ago from the insurance and medical lobbies and their political allies, like Rick Perry in Texas. Even aside from the fact that Maryland already has more OB-GYN’s per capita than any other state in the nation, the suggestion that OB-GYN’s might now leave Maryland or abandon their specialty if this horrendous legislation isn’t enacted, is outrageously false fear-mongering. In Texas, that realization came too late to stop legislation that stripped families of their legal rights, later leading to articles like “Baby I Lied.”

There are years of studies showing no correlation whatsoever between where physicians decide to practice and the malpractice environment, including malpractice insurance rates and state tort law. (See CJ&D's Med Mal Briefing Book starting at page 50.)

Here's another observation. For over 40 years, policy proposals in the area of medical malpractice have concentrated almost entirely on the “doctors as victims” narrative. In other words, the insurance, hospital and medical lobbies effectively turned the malpractice issue on its head, so that policymakers treat medical malpractice primarily as if doctors, hospitals and their insurers were the victims of it, instead of the hundreds of thousand of patients who wind up dead or injured each year. This is well-reflected in the hundreds of medical malpractice laws that have passed around the country, including in Maryland, virtually all of which are designed to weaken the liability of health care providers. This proposal is yet another example.

And how ironic, the patronizing criticism made by providers and hospitals that say this system is needed in Maryland because the malpractice system delivers compensation too slowly to victims. As others have written, “This argument strikes us as an example of the ‘chutzpah defense,’ best exemplified by the individual who killed his parents, and then threw himself on the mercy of the court because he was an orphan.” Nothing today prevents hospitals or liability carriers from settling legitimate claims with patients before they file a court case, or from paying valid claims expeditiously. In fact, informal pre-trial settlements, where both parties voluntarily agree to take a case out of the civil justice system, are not only appropriate but currently resolve the vast majority of legitimate medical malpractice claims today. However, schemes like this, which tilt the legal playing field dramatically in favor of the health care industry, eviscerate the jury system and patients’ rights to adequate compensation, and protect the most dangerous hospitals and incompetent physicians, are deplorable.

Indeed, never in the history of this country has an administrative system turned out ultimately better for victims who ceded their right to trial by jury. Even if a program begins with good intentions, taking any compensation decision out of courts subjects it eventually to influence-peddling and future budgetary/solvency considerations that no lawmaker today can control. These problems are always resolved on the backs of more powerless victims, who gave up their legal rights with vague and unenforceable promises that are ultimately broken. Just look at what's happened to workers comp in this country. Slashed benefits, workers denied help. That is the lesson of history.

October 01, 2015

Don Blankenship, Massey Energy’s former CEO (also known as “[o]ne of the most reprehensible bosses in recent history”), today goes to trial. The charges stem from the 2010 West Virginia Upper Big Branch coal mine explosion “that killed 29 workers, the U.S. industry’s deadliest in almost four decades.” (See some of our earlier coverage here, here, including how the families who sued were compensated. ) Writes Slate, “He will be brought to justice for allegedly shunning coal mine safety rules, conspiring to conceal safety violations, and lying to the U.S. Securities and Exchange Commission and company shareholders.” (Interesting contrast to the U.S. Department of Justice’s “hands-off” attitude towards GM executives responsible for far more deaths.)

Miners’ safety is at the forefront of this trial, and interestingly, notesBloomberg, “Massey Energy was one of a handful of mining and energy companies that tied its chief executive officer’s bonus to safety performance in 2010."

Blankenship had his bonus cut by about $150,000 [the year of the mine explosion] for failing to meet safety goals. He still got a $669,000 award because only 10.5 percent of his annual bonus was tied to safety.

“If 90 percent of your bonus can be achieved with full disregard to health and safety, that’s an underwhelming link,” Anne Simpson, senior portfolio manager and director of corporate governance at the California Public Employees’ Retirement System, the largest U.S. pension, said of typical executive-compensation practices. “Particularly in an industry where health and safety is absolutely the foundation of the company’s license to operate, its reputation, its operational risk and, of course, ultimately financial success.”

In fact, as Bloomberg shows, there doesn’t seem to be any correlation at all between this kind of compensation incentive and worker safety. The incentives were pretty weak at Massey and Blankenship even flunked those (although he got an eight-figure package when he “retired.”)

Let’s not spend too much time on that crook and instead keep the focus where it should be – on the workers who are injured or killed producing energy for the rest of us. Sadly, things don’t seem to be getting much better for them. For example, “A new report suggests oil-field work has never been more dangerous.” Last year was, according on one article, "one of the deadliest years for oil and gas workers."

Earlier this month, the Bureau of Labor Statistics said 142 oil and gas workers died in 2014, a 27 percent jump from 2013, when 112 workers died.

That 2014 number may even increase when the final federal breakdown is released in April, said Rebecca Reindel, senior safety and health specialist with AFL-CIO.

The labor group releases an annual report on worker safety and tracks fatalities and injuries in many employment categories. Reindel said she was jolted by the rise in oil and gas deaths.

"Oil and gas deaths are the highest we've seen them, possibly ever (recorded), definitely the highest going back to 2003," she said.

Actually, all of this is in line with the dismal state of worker safety generally. As FairWarningreported just a couple weeks ago,

More Americans died on the job last year, with the increase concentrated among older employees as well as self-employed and contract workers. Preliminary federal figures released today for 2014 put the workplace death total at 4,679, up 2 percent from the final count of 4,585 for 2013.

The new figures amount to the highest preliminary death total in six years, and the total will almost certainly grow by the time final numbers for 2014 are issued in the spring.

As for Blankenship himself, he seems bad or worse, as well. I mean, just as a person on Earth. Apparently, “[h]e released a self-made ‘documentary saying that the Upper Big Branch disaster was an ‘act of God’ caused when miners struck a hidden natural gas pocket and not the result of defective equipment and procedures, as investigators have found.” He faces 30 years in prison.

September 10, 2015

As PopTort readers may know, we stay out of electoral politics. That’s not to say that we don’t cover politicians who finally make it to office (Remember Better Call Ted?) but once they’re running for, say President, it’s pretty much radio silence from us. We realize that greatly shrinks the roster of folks to cover for the time-being, but those are the rules!

That said… Did you happen to catch the first night of Steven Colbert’s new Late Show gig? Here’s what The Fix said about it:

After watching just a few minutes of Stephen Colbert's very first “The Late Show with Stephen Colbert,” two things became clear: 1) Colbert plans to be a major player at the nexus of pop culture and the 2016 presidential election, and 2) he's going to take politics and its players seriously.

The article was titled, “Stephen Colbert serves notice: He will matter in 2016.”

And then there's Colbert's partner in crime, Jon Stewart. I’m not even talking about what reporters and pundits have pontificated about Stewart’s influence (like here, here.) I’m talking about honest-to-goodness real life examples.

One of the most significant examples was what happened following his 2010 show featuring 9/11 first responders who were fighting with Congress over the James Zadroga 9/11 Health and Compensation Act - a bill that funds health care for sick and dying 9/11 workers. The bill passed following that show. Wrote the New York Times:

Did the bill pledging federal funds for the health care of 9/11 responders become law in the waning hours of the 111th Congress only because a comedian took it up as a personal cause?

And does that make that comedian, Jon Stewart — despite all his protestations that what he does has nothing to do with journalism — the modern-day equivalent of Edward R. Murrow? …

Certainly many supporters, including New York’s two senators, as well as Mayor Michael R. Bloomberg, played critical roles in turning around what looked like a hopeless situation after a filibuster by Republican senators on Dec. 10 seemed to derail the bill.

But some of those who stand to benefit from the bill have no doubt about what — and who — turned the momentum around.

“I don’t even know if there was a deal, to be honest with you, before his show,” said Kenny Specht, the founder of the New York City Firefighter Brotherhood Foundation, who was interviewed by Mr. Stewart on Dec. 16.

That show was devoted to the bill and the comedian’s effort to right what he called “an outrageous abdication of our responsibility to those who were most heroic on 9/11.”

Well, that was five years ago and the Act is set to expire at the end of September while these workers continue to get sick and die. Once again, Congress is a problem and this time, Mr. Stewart is heading to Washington. He may be without a show but, writes the Daily Beast:

Stewart plans to roam the halls of Congress with roughly a hundred 9/11 responders next Wednesday. The goal is to pressure lawmakers to continue funding health programs for thousands of firefighters, cops, and EMTs who suffer from illnesses, including cancer, caused by their work at ground zero.

“Honored Jon Stewart will join 9/11 heroes next week, but fact is, they shouldn’t have to walk the halls of Congress at all,” Sen. Kirsten Gillibrand (D-NY) tweeted on Tuesday. “It’s our moral obligation to ensure they get care.”

Other lawmakers who have worked on renewing this legislation have lauded the 52-year-old comedian for his efforts.

“Jon Stewart was one of the driving forces behind getting the Zadroga Act passed in the first place, but the law is set to expire unless Congress acts again,” Rep. Carolyn Maloney (D-NY) said in a statement. “The ailing 9/11 responders and survivors are suffering a range of health care problems. We can’t force them to come back to Capitol Hill every five years to beg for their health care. Nobody understands that better than Jon Stewart, and nobody is better suited to make sure Congress gets the message.”

“Jon Stewart was on the front lines of the battle helping us to establish these programs,” Rep. Jerrold Nadler (D-NY) said. “We are all grateful to him for once again fighting for our 9/11 heroes.”

Rep. Peter King (R-NY), whom Stewart once called a hypocritical “terrorist sympathizer,” is praising the comic for bringing attention to the issue.

“I welcome his help,” the congressman told The Daily Beast. “Any help we get is vital…Whatever political or philosophical difference we have, I give him a lot of credit for going at an issue that is important to get public support for. He was helpful, there’s no doubt about it.”

I hope it works. For everyone freaking out about the cost of this program, the words of John Feal, who is leading the fight, should send shivers right through you. "We're asking for a permanent bill, but lets not kid ourselves," Feal said. "There's nothing permanent about 9/11 responders. We're all going to die off."

September 03, 2015

Back in 2008, we wrote about an extraordinary class-action case brought by 80,000 people against DuPont USA, which had knowingly “polluted water supplies of two West Virginia and four Ohio water districts with a chemical used to manufacture Teflon, called C-8,” and tried to cover it up.

It was an important settlement, requiring the company to stop poisoning people and, among other things, “install filtration systems in contaminated water districts.” But it didn’t cover compensatory damages for people who were sick and dying. Area residents and DuPont employees had cancers, diseases and children born with severe birth deformities at unusuallyhigh rates but no epidemiological study yet existed tying their diseases to C-8. At least not yet.

Included in the $374 million settlement that DuPont agreed to pay was $70 million for a community health and education project and $30 million to fund a health study, juried by independent, court-appointed epidemiologists, to evaluate the health effects of C-8. DuPont even agreed not to contest the panel’s conclusions even if they found a general causal connection between C-8 and health effects - the basis for any possible future injury claims.

Why would DuPont agree to such a thing? Well, DuPont probably thought they had nothing to fear.

At the time, given the difficulty of the study, finding a link seemed improbable. Establishing such a connection would require a very large pool of data- larger than is typically collected from a single rural community.

But what they didn’t anticipate was clever lawyering by the plaintiffs’ attorneys they were fighting. Here is what happened next (as explained in a long-format expose, which appeared this week in the Huffington Post):

This conundrum weighed heavily on attorney Harry Deitzler, who lives in Parkersburg and serves as a local liaison to plaintiffs. ‘I knew the reason DuPont settled the case and agreed to assign this panel of epidemiologists was because they didn’t think they were ever in this lifetime going to find links,’ Deitzler told me. “But I didn’t want to face people and say, ‘Hey, we got this huge settlement and everybody only gets 600 bucks.’”

Then one night, a solution came to him. “It was like God reached out from the sky and tapped into my brain,” he recalls. The plaintiffs would use the $70 million health and education fund from the settlement to pay people $400 each to participate in the epidemiological study.

As a result of the strategy, roughly 80% of the residents in the effected water districts participated in the epidemiological study, making it “far more likely the panel of epidemiologists would be able to correlate C-8 exposure with particular diseases.” Paul Brooks, the doctor who oversaw the program, explained, “I think it messed up a lot of people at DuPont’s lives that we devised this wild system. These hillbillies threw a rock in DuPont’s machine.”

And it worked. The results of the study were so overwhelming that not even experts funded by DuPont could ignore them.

In 2012, the epidemiologists concluded that a “probable link exists” between the chemical and at least 6 diseases: kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, pregnancy-induced hypertension, and hypercholesterolemia.

This scientific discovery, made possible by the overwhelming community participation in the epidemiological study, provided the link victims needed to show that C-8 was responsible for the cancers, diseases, and deformities that effect thousands in the community.

This month, trial begins on the first of 3,500 personal injury cases that have now been filed against DuPont. We will keep you posted.

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